Jharkhand High Court
Charo Oraon Son Of Late Libua Oraon vs State Of Jharkhand on 20 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 313 of 2020
With
I.A. No.5370 of 2020
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Charo Oraon son of Late Libua Oraon, aged about 54 years, resident of Village-Duru, P.O. and P.S. Bero, District-Ranchi, Jharkhand.
... ... Petitioner No.5/Appellant Versus
1. State of Jharkhand.
2. The Commissioner, South Chotanagpur Division Ranchi, P.O., G.P.O. Ranchi, P.S. Kotwali, Ranchi & District-Ranchi, Jharkhand.
3. The Additional Collector, Ranchi, P.O., G.P.O. Ranchi, P.S. Kotwali, Ranchi & District-Ranchi, Jharkhand.
4. The Special Officer, Scheduled Area Regulation, Ranchi, P.O., G.P.O. Ranchi, P.S. Kotwali, Ranchi & District-Ranchi, Jharkhand.
... ... Respondents/Respondents
5. Kalemun Khatun, wife of Late Sk. Karu
6. Sk. Sayed
7. Sk. Jayerat
8. Sk. Abujar
9. Sk. Hasbaul
10.Sk. Sabul, S.No. 6 to 10 all sons of Late Sk. Karu.
11.Sk. Mubarak son of Late Sk. Ibrahim.
12.Sk. Rashid son of Late Sk. Ibrahim
13.Sk. Zahir Son of Late Sk. Ishak
14.Sk. Phulsarat son of Late Sk. Ishak, S. No.5 to 14 all resident of village- Chachkopi, P.O. & P.S. Bero, District Ranchi, Jharkhand.
....... Petitioners/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioner : Mr. Prashant Pallav, Advocate Mr. Parth Jalan, Advocate For the Respondent-State : Mr. Ratnesh Kumar, SC (L&C)-I Mr. R.K. Shahi, AC to SC (L&C)-I
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th 10/Dated: 20 March, 2024
1. The appeal under clause 10 of the letters patent is directed against the order/judgment dated 26.05.2020 passed by the learned Single Judge of this Court in W.P.(C) No.6152 of 2006, whereby and whereunder, the orders passed by the appellate authority dated 23.06.2006 passed in SAR Appeal No.202 R 15 of 2002-03 and order dated 10.10.2006 passed by Page 1 of 23 L.P.A. No. 313 of 2020 the respondent no.2 in SAR Revision No. 60 of 2006 are held to be illegal since the same has been passed on non-consideration of the factual aspect as well as the legal aspect of the case, therefore, quashed and set aside.
Facts:
2. The brief facts of the case as per the pleading made, which requires to be enumerated herein, reads as under:
The lands of Khata No. 16 total area 12.61 Acres in Village - Duru P.S. Bero District Ranchi stand recorded in the name of Barka Junga Oraon, Son of Gangia Oraon, who died issueless. The entire property of Barka Junga Oraon, Son of Gangia Oraon was inherited by his brother Bhukha Oraon. Bhukha Oraon died living behind a son Libuwa Oraon who inherited the property of Barka Junga Oraon, Son of Gangia Oraon after the death of Bhukha Oraon and Libua Oraon's two sons Charo Oraon and Soma Oraon had inherited the Property of Barka Junga Oraon, Son of Gangia Oraon, who are the appellant in this case.
The appellant Charo Oraon and his brother Soma Oraon filed a restoration case under section71A of the Chotanagpur Tenancy Act, before the Sub-Divisional Magistrate Ranchi against Sk. Karu & others who are the Respondents, which was registered as SAR Case No.01/96. They did not appear in spite of service of notice. Hence the prayer of the Petitioners was allowed ex-parte by order dated 17.01.1997 by the Sub- Divisional Magistrate, Ranchi.
The Respondent Sk. Karu preferred an Appeal No. 11R-15/97- 98 which was allowed by order 13/01/1999 and the case was remanded back to the court of Special officer, Scheduled Area Regulation Ranchi.
Sk. Karu and others claimed the land in question measuring 5.49 acres out of plot nos. 73, 85, 102, 121, 730, 190, 520 and 1077 was surrendered by the recorded tenant by registered deed of surrendered dated 16/01/1942 to the Ex-land lord. The ex-landlord subsequently settled the same by Sada hukumnama in favour of Sk. Ibrahim father of Sk. Karu, Sk. Mubarak and Sk. Rashid and also in the name of Sk. Ishak father of Sk. Zahir and Sk. Phulsarat. Thus, they have validly acquired the land in question. The Special Officer Ranchi was pleased to dismiss the prayer of Page 2 of 23 L.P.A. No. 313 of 2020 the petitioner Charo Oraon vide order dated 30.12.2002 passed in S.A.R. case No.01 of 1996-97, without properly appreciated the fact that the alleged Surrendered deed was not Executed by the recorded tenant and the same was nothing but a forgery committed by the Ex-land lord and Sk. Ibrahim and Sk. Ishak and is ab initio void.
The appellant Charo Oraon preferred an appeal against the order passed by the Special officer dated 30.12.2002, before the Additional Collector Ranchi vide SAR Appeal No. 202R-15/02-03, which was allowed by order dated 23.06.2006, finding that the alleged surrender deed has not been executed by the recorded tenant Barka Junga Oraon son of Gangia Oraon, rather the same has been executed by one Junga Oraon son of Dugia Oraon. The Additional Collector allowed the appeal and ordered to deliver portion of the land to Petitioner Charo Oraon.
The Respondent Sk. Karu & others challenged the order of Additional Collector Ranchi by preferring a revision SAR Revision No. 60/2006 before the Commissioner South Chotanagpur Division, which was rejected by order dated 10/10/2006 and order of Additional Collector was upheld.
Being aggrieved, the respondent nos.5-9 preferred writ petition being W.P.(C) No.6152 of 2006 challenging the order dated 23.06.2006 passed by the appellate authority and order dated 10.10.2006 passed by the revisional authority which had been allowed and the both the aforesaid orders had been quashed and set aside. Hence, the instant letters patent appeal.
3. It is evident from the factual aspect as pleaded that the appellant who was the original raiyat in whose favour the land was given for his personal use measuring an area of 12.61 acres in Plot Nos. 5, 53, 73, 85, 102, 121, 180, 183, 190, 520, 521, 730, 807 and 1077 of Khata No. 16 situated at Village - Duru, P. S. Bero, District Ranchi.
4. It is further evident from the factual aspect that out of the total area, area of 5.49 acres of the aforesaid plot has been restored in favour of the raiyat initially vide order dated 17.01.1997 which was allowed, however, the order being ex-parte, hence, the private respondents had preferred appeal Page 3 of 23 L.P.A. No. 313 of 2020 being Appeal No.11-R-15/1997-98. The appellate authority after taking into consideration the fact that the order being ex-parte, has remitted the matter to Special Officer, Scheduled Area Regulation, Ranchi for fresh hearing so as to provide an opportunity to the concerned respondents.
The proceeding afresh was initiated by the Special Officer, SAR by restoring the case being SAR Case No. 1/1996-97 The aforesaid restoration application was dismissed vide order dated 30.12.2002 against which the appeal was preferred by the present appellant being SAR Appeal No.202 R 15 of 2002-03 by which the order passed by the Special Officer has been quashed and set aside. Aggrieved with the order passed by the appellate authority, the respondent, S.K. Karu, had preferred revision being SAR Revision Case No.60 of 2006, wherein, the revisional authority had declined to interfere with the order passed by the appellate authority. The respondent herein being aggrieved with the order passed by the appellate as well as revisional authority, had preferred writ petition being W.P.(C) No. 6152 of 2006. The ground inter alia was taken in addition to the issue that the land was surrendered vide registered deed of surrender dated 16.01.1942 and consequent to the same land came in the possession of the writ petitioner and since then they are in possession of the land.
5. The ground of limitation, therefore, was taken by putting reliance upon the judgment rendered by the Hon'ble Apex Court in Situ Sahu and Ors. vs. State of Jharkhand and Ors., reported in (2004) 4 JLJR 109 SC.
6. The learned Single Judge after taking note of the aforesaid judgment as also considering the stipulation made under Section 71-A of the CNT Act as per which the restoration application is to be filed within a reasonable period but considering the same to be filed after lapse of about more than 50 years, therefore, the impugned order passed by the appellate authority dated 23.06.2006 passed in SAR Appeal No.202 R 15 of 2002-03 and order dated 10.10.2006 passed by the respondent no.2 in SAR Revision No. 60 of 2006 have been considered to be improper and accordingly, both the orders have been set aside against which the present appeal has been preferred.
Page 4 of 23 L.P.A. No. 313 of 2020Argument on behalf of the learned counsel for the appellant:
7. Mr. Prashant Pallav, learned counsel for the appellant, original raiyat, has submitted that the order passed by the learned Single Judge suffers from error on the ground that even the law has been laid down by the Hon'ble Apex Court to make an application for restoration which is to be made within the period of 30 years as per the which judgment rendered by the Hon'ble Apex Court in the case of Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) but for reaching to the conclusion as to whether the application for restoration has been filed within the period of 30 years, the aforesaid issue is required to be considered by the adjudicating authority since the issue of limitation being the mixed question of law and fact which can only be adjudicated by the authority by leading evidence but it would be evident as per the order passed by the appellate or the revisional authority there is no issue of limitation had ever been raised, meaning thereby, the issue of limitation which is the mixed question of law and fact was never considered to be an issue and without appreciating the aforesaid fact the learned Single Judge has come to the conclusion from the date of the registered surrendered deed dated 16.01.1942 to be the date of transfer hence, the question which was required to be considered was the actual date of transfer, meaning thereby, the transfer under the CNT will be considered to be the date of dispossession of the raiyat.
8. It has been submitted for the purpose of coming to the conclusion, the exact date of transfer by virtue of dispossession of the raiyat, the evidence was required to be led but the issue since was not agitated by the private respondents, hence, no occasion was there before the appellate or the revisional authority to come to the conclusion upon the aforesaid issue of limitation.
But the learned Single Judge while issuing the writ of certiorari has quashed the entire order presuming the fact that the application so filed under Section 71-A of the CNT is barred by limitation.
9. The ground has been taken that the principle of issuance of writ of certiorari is in a case if there is lack/exceeding of jurisdiction or the order passed suffers from perversity.
Page 5 of 23 L.P.A. No. 313 of 202010. The question herein is not having any jurisdictional error rather the case of perversity which led the learned Single Judge to quash the order passed by the appellate and the revisional authority, but, before coming to the aforesaid conclusion the learned Single Judge ought to have taken into consideration that if the issue has not fell for consideration before the appellate or the revisional authority, as such, in absence of any finding to that effect or non-consideration of the said issue so as to consider the case to come under the fold of perversity but even then the order passed by the appellate and the revisional authority has been quashed by issuance of writ of certiorari.
11. The ground has further been taken that all along the case of the appellant is that the registered deed of surrender is a piece of fraudulent document since the raiyat who is the appellant herein all along has taken the plea that the signature available in the registered deed of surrender is not of raiyats.
12. The said plea has been taken by the raiyat, the appellant herein, then the question of consideration of the date of dispossession is having more bearing upon the issue and in that view of the matter also, the learned Single Judge ought to have considered the fact while quashing the impugned order by remitting the matter before the original authority to decide the issue afresh also by taking into consideration the issue of limitation so as the substantial right to hold the property in the capacity of raiyat be adjudicated by taking all the points together.
13. Learned counsel for the appellant has submitted that in pursuance of the order passed by the appellate affirmed by the revisional authority, the possession of the land in question has already been handed over in favour of the appellant on 24.11.2006 and the rent is also being paid by the raiyat in lieu thereof, the rent receipts are also been issued.
14. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that the impugned order, therefore, needs to be quashed so far as it relates to closing the matter instead thereof, it will be said to be proper to remit the matter before the Special Officer for adjudicating the right of the parties by taking into consideration also the issue of limitation apart from the merit.
Page 6 of 23 L.P.A. No. 313 of 2020Argument on behalf of the learned counsel for the Respondent:
15. Per contra, Mr. Ratnesh Kumar, learned SC(L&C)-I appearing for the respondent has defended the impugned order. It has been submitted by him that there is no infirmity in the impugned order reason being that the learned Single Judge has considered the ratio laid down by the Hon'ble Apex Court in the case Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors., reported in (2000) 5 SCC 141 and Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) wherein the law has been laid down by interpreting the word as contained in the provision of Section 71-A of the CNT Act "at any time" which has been interpreted to be within the reasonable time. The reasonable time has been taken note in the case of Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) based upon the provision of Article 65 of the Limitation Act.
16. Based upon the aforesaid principle, the Hon'ble Apex Court has been pleased to hold that the period to file application for restoration will be 30 years.
17. The submission, therefore, has been made that if the learned Single Judge has come to the conclusion by quashing the impugned order passed by the appellate and the revisional authority for counting the period of limitation as provided under Section 71-A of the CNT Act and counting it from 16.01.1942 while the application was filed under Section 71-A sometime in the year 1996 which is beyond the period of 50 years and the learned Single Judge if on that premise has followed the judgment passed by the Hon'ble Apex Court which led the learned Single Judge to quash the appellate as also the revisional authority's order, the same cannot be said to suffer from illegality, therefore, the impugned order may not be interfered with.
Analysis:
18. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order.
19. This Court, before proceeding, needs to refer that the private respondents, the writ petitioners, have been arrayed as respondent nos.5-14 to this proceeding. It appears from the order dated 25.04.2023 that notices were Page 7 of 23 L.P.A. No. 313 of 2020 issued upon the respondent nos.5-14 both under registered cover with A/D as well as ordinary process, requisites for which were to be filed within a week.
The respondent-State is being represented by Ratnesh Kumar, learned SC(L&C)-I had waived notice on behalf of the respondent nos.1-4.
The steps were taken by issuance of notice upon the respondent nos.5- 14 as would be evident from the office note dated 04.05.2023. The notice have been issued through ordinary process as well as registered cover with A/D in limitation matter and admission matter as would be evident from the office note dated 07.07.2023. The notices shown to have been received by the respondent no.6-14 but as per the office note, the notice was received on behalf of the respondent no.6-8 by their wives. So far as the notice upon the respondent No.9 is concerned, the same was received by his daughter. So far as notice upon respondent No.10 is concerned, the same has been received by his niece. Notice upon respondent No. 11 and 12 has been received by their granddaughter. Notice upon respondent No.13 and 14 have been received by their grandson
20. The said office note was taken care by this Court as would be evident from the order dated 11.07.2023. The prayer although was made on behalf of the appellant that since the notices have been received by the concerned respondents by their wives, daughter, niece, grand-daughter and grand-son, as such, the service may be considered deemed to served validly upon the respondents.
21. The appearance was not made on behalf of the aforesaid respondents, therefore, this Court thought it proper to direct the learned counsel for the appellant to go for paper publication.
The notice upon the said respondents was published in the daily newspaper and to that effect, supplementary affidavit had been filed on 26.08.2023 annexing the paper publication but even then, there is no appearance.
22. Learned counsel for the appellant, however, has submitted that perhaps for the reason that the possession over the land has been handed over in Page 8 of 23 L.P.A. No. 313 of 2020 favour of the raiyats, the appellant herein, the same may be a ground for non-appearance on the part of the contesting private respondents.
23. Be that as it may, this Court since has passed order on 11.07.2023 that the service is deemed to be validly served, hence, in the light of the said order, this Court is of the view that the matter is to be heard on merit.
24. The issue which has been raised on behalf of the appellant is as follows:
(i) As to whether the learned writ court while quashing the order passed by the appellate as well as the revisional authority on the issue of limitation, can be said to be just and proper without remitting the matter before the original authority for the purpose of adjudication of the issue on limitation which is a mixed question of law and fact.
(ii) As to whether closing the matter by quashing the order passed by the appellate as well as the revisional authority can be said to be just and proper where the issue of limitation has not at all been raised before the original authority or the appellate authority or the revisional authority, instead of remitting the matter before the concerned original authority to have adjudication on the said issue.
25. This Court, in order to answer the aforesaid issues which are interlinked, is of the view that before answering the same, the legal issue is required to be referred herein.
26. There is no dispute about the fact that the CNT Act, 1908 is a beneficial piece of legislation as would be evident from its Preamble. The scope and intent of the Act is to protect the raiyati right of the raiyats of the Scheduled/non-Scheduled Areas. The raiyats have been defined therein and various provisions have been carved out to protect the right. The primary provision is Section 46(1). So far as the land of the Scheduled area is concerned, wherein it has been mandated that the land can only be transferred from the tribal to tribal but with the permission of the Deputy Commissioner if the land is in the same police station.
Section 46(4) speaks about the land of the non-scheduled area for which the special provision has been carved out under Section 46(5) Page 9 of 23 L.P.A. No. 313 of 2020 providing therein the period of limitation for the purpose of restoration of the land if the land has been transferred without the permission of the Deputy Commissioner which period has been mandated as 12 years. For ready reference, the provision of Section 46 is being reproduced as under:
"[46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,-
(a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the 'Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] (2) A transfer by a Raiyat of his right in his holding or any portion thereof under subsection (1) shall be binding on the landlords.
(3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
[(3-A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] Page 10 of 23 L.P.A. No. 313 of 2020 (4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor.
(5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],-
(a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950;Page 11 of 23 L.P.A. No. 313 of 2020
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and
(c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]"
27. It is a case where the question of surrender is the main issue. The issue of surrender has been taken care by the Statute as under Section 72 of the CNT Act, 1908 as per which it has been mandated that the land can be surrendered by the raiyat in favour of the ex-landlord but by virtue of the Amended Act of 1969. The word has been inserted only with the previous sanction of the Deputy Commissioner. For ready reference, the provision of Section 72 is being reproduced as under:
"72. Surrender of land by Raiyat - (1) A Raiyat not bound by a lease or other agreement for a fixed period may, at the end of any agricultural year surrender his holding [with the previous sanction of the Deputy Commissioner in writing].
(2) But, notwithstanding the surrender, the Raiyat shall be liable to indemnify the landlord against any loss of the rent of the holding for the agricultural year next following the date of the surrender, unless he gives to his landlord, at least four months before he surrenders, notice of his intention to surrender.
(3) The Raiyat may, if he thinks fit, cause the notice to be served through the Court of the Deputy Commissioner within whose jurisdiction the holding or any portion of it is situate.
(4) When a Raiyat has surrendered his holding the landlord may enter on the holding and either let it to another tenant or to take it into cultivation himself.
(5) Nothing in this Section shall affect any arrangement by which a Raiyat and his landlord may arrange for a surrender of the whole or a part of the holding [with the previous sanction of the Deputy Commissioner in writing.]
28. From perusal of the Act, 1908 it would be evident that up to the year 1969 there was no special provision for restoration of the land that led the Legislature to come out with the amendment Act which is known as Scheduled Area Regulation Act, 1969. The aforesaid act of the year 1969 has inserted a provision Section 71-A of the CNT Act. The said provision confers opportunity to the raiyat to make application for restoration of land. The aforesaid provision starts with the word if at any time, it comes to the notice of the Deputy Commissioner that the land has been transferred in violation of Section 46 or Section 48 or Section 240 or any other provisions of the Act and if it comes to the notice of the Deputy Page 12 of 23 L.P.A. No. 313 of 2020 Commissioner that the land has been transferred without valid sanction by the Deputy Commissioner, the same is to be restored in favour of the raiyat.
29. The aforesaid provision also contains to provisos, the first proviso is for a transfer which has been held to be invalid if transferred without any sanction of the Deputy Commissioner while the second proviso is by way of exception wherein the provision has been made that if the land transferred is found to be invalid, the same can be validated subject to compensating the transfer if the construction said to be substantial in nature is prior to the year 1969. For ready reference, the provision of Section 71-A is being reproduced as under:
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240 or any other provisions of this Act or by any fraudulent method, including decrees obtained in suit by fraud and collusion he may, after giving reasonable opportunity to the transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed : Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor:
Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as Page 13 of 23 L.P.A. No. 313 of 2020 the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
30. The core issue herein as has been dealt with by the learned Single Judge while quashing the order passed by the appellate or the revisional authority is the issue of limitation.
31. Admitted fact as per the pleading is that the land in question comprising of an area of 5.49 acres out of 12.61 acres was said to be surrendered by deed of surrender dated 16.01.1942 in favour of the ex-landlord said to be in view of the provision of Section 62 while after the surrender the land has been presumed to be accepted to be vested upon the ex-landlord who had settled the said land in favour of the predecessor in interest, the private respondents on 02.03.1946.
32. The contesting respondent has agitated the issue by raising the issue of limitation which was sought to be counted from 02.03.1946, the date when the land was said to be settled in favour of the predecessor in interest of the contesting respondent herein.
33. The learned Single Judge, therefore, has applied the judgment rendered by the Hon'ble Apex Court in Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors. (supra) and Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) has quashed the impugned orders.
34. The question herein, which has been admitted even by the learned State counsel that the issue of limitation was never a question for consideration, then the question is that when a Court is exercising the jurisdiction to issue writ of certiorari and if the issue has not been dealt with by the administrative authority, then on what ground the writ of certiorari is to be issued. The same is required to be considered.
The law is well settled so far as the principle to issue writ of certiorari is concerned as has been rendered by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 SC 477. Paragraph no.7 of the said judgment is being reproduced as under:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction Page 14 of 23 L.P.A. No. 313 of 2020 committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 :
(AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held in paragraph no.21 as under:
"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."Page 15 of 23 L.P.A. No. 313 of 2020
In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:
"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
In Thansingh vs. Supdt. of Taxes, A.I.R. 1964 1419 Supreme Court, Hon'ble Supreme Court has been pleased to hold that the High Court does not jointly determine question which requires elaborate examination of evidence to establish the right to enforce for which the writ is claimed.
Page 16 of 23 L.P.A. No. 313 of 2020In Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey, (2015) 4 SCC 270 their Lordships, while discussing the scope of Articles 226 and 227 of the Constitution of India in the matter of interference into the finding of the Tribunal, has been pleased to hold by placing reliance upon the judgment rendered in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para-17 as under:
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:
The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
In General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Ors., (2019) 10 SCC 695 the Hon'ble Apex Court has delved upon the issue about scope of issuance of writ of certiorari by the High Court and has laid down that, if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.
Page 17 of 23 L.P.A. No. 313 of 202035. It is, thus, evident from the aforesaid proposition that the writ of certiorari can only be issued if the finding of the administrative authority in the capacity of quasi-judicial functionary is available in the order so as to adjudge the perversity for the purpose of exercising the power to issue writ of certiorari.
36. Further, the ground to issue writ of certiorari is the lack of jurisdiction but herein, the issue of lack of jurisdiction is not the issue rather the issue of perversity which led the learned Single Judge to interfere with the order passed by the appellate as also the revisional authority, therefore, this Court is considering the issue of perversity.
37. The word 'perverse' has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court Page 18 of 23 L.P.A. No. 313 of 2020 defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.""
38. The said proposition is having bearing on the issue herein reason being that if no issue at all has been agitated said to be the issue of limitation by the contesting respondent then how it be allowed to agitated at the stage of the writ jurisdiction for the purpose of issuance of writ of certiorari as has been held by the Hon'ble Apex Court in the judgments referred aforesaid wherein it has been explained that the writ of certiorari can also be issued if the writ court finds perversity in the impugned order which will be evident from bare perusal of the order itself.
39. Further, if there is no consideration of an issue, the same is to be considered on the basis of the pleading made on behalf of the parties so as to raise the issue that the points although having been raised but has not been considered so the order suffers from perversity.
40. This Court, in order to come to the conclusion as to whether the issue of limitation at all was raised, has gone across the order passed by the appellate and the revisional authority but this Court has not found Page 19 of 23 L.P.A. No. 313 of 2020 anywhere that the issue of limitation at all was raised before the original authority or the appellate authority.
41. The aforesaid fact has also not been disputed by the learned State counsel.
42. This Court, therefore, is of the view that the order which has been passed by the learned Single Judge by quashing the order of the appellate and the revisional authority in absence of any finding to that effect pertaining to the issue of perversity, the same cannot be said to be proper.
43. Further the issue has been taken into consideration by the learned Single Judge by taking aid of the judgment rendered by the Hon'ble Apex Court in Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors. (supra) and Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) by which the proposition has been laid down that the application for restoration is to be filed within a period of 30 years. For ready reference, relevant paragraphs of both the judgments are being referred as under:
Paragraph-16 of the judgment rendered in Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors. (supra):
"16. The submission that, in any event the contesting respondents cannot be allowed to hold the land they being non-tribals and the Deputy Commissioner is obliged to allot the same to some other tribal only does not merit our acceptance. Apart from the grounds on which we have rejected the claim of the appellant, we find that the High Court left open the question about the disputed character of the lands and the nature of interest surrendered which if had been properly considered and decided was likely to have an impact on the question of the very applicability of the statutory provisions to the case on hand. Merely because Section 71-A commences with the words "If at any time..." it cannot be taken to mean that those powers could be exercised without any point of time-limit, as in this case after nearly about forty years unmindful of the rights of the parties acquired in the meantime under the ordinary law and the law of limitation. We consider it, therefore, inappropriate to countenance any such contentions in these proceedings."
Paragraph-14 of the judgment rendered in Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra):
"14. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not Page 20 of 23 L.P.A. No. 313 of 2020 satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies."
44. Even accepting the fact that the Hon'ble Apex Court has laid down the proposition by laying down the period of limitation and if that prompted the learned Single Judge to interfere with the order passed by the appellate and the revisional authority then the proper course would have been to remit the matter before the original authority so as to provide an opportunity to the party concerned to raise the said issue for its adjudication on merit as also the issue on limitation.
45. The aforesaid reason is having the implication since as per the law laid down by the Hon'ble Apex Court in the case of Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra), the application is to be filed within the period of 30 years for restoration. The period of 30 years is to be counted from the date of settlement or dispossession, the same also requires consideration.
46. Herein, in the present case, the case of the raiyat, the appellant herein, is that the deed of surrender is nothing but a fraudulent document.
47. Further the ground has been taken that the land was settled in favour of the predecessor in interest of the contesting respondent herein on 02.03.1946 by way of sada hukumnama, therefore, the period to count the period of 30 years is required so as to come to the conclusion that the 30 years period to be counted from which date for the purpose of counting the period of 30 years from the specific date so as to come to the conclusion that the application filed under Section 71-A is barred by limitation.
The requirement under the law is to lead evidence by providing opportunity to that regard to the parties concerned. The aforesaid Page 21 of 23 L.P.A. No. 313 of 2020 opportunity can only be granted before the original adjudicatory authority.
48. The CNT Act since is a beneficial piece of legislation but vis-à-vis right of the raiyat is to be taken into consideration in view of the law laid down by the Hon'ble Apex Court in Situ Sahu and Ors. vs. State of Jharkhand and Ors. (supra) wherein it has been mandated that application is to be filed within 30 years which itself suggest that if any application will be filed beyond the period of 30 years, then right will not be created in favour of the raiyat and in that view of the matter, the raiyat will not be entitled for restoration of the land. Therefore, a balance is to be created in between the raiyat and non-raiyat for which the matter needs consideration afresh.
Conclusion:
49. This Court, therefore, is of the view that the order passed by the original, appellate and the revisional authority is concerned, the same needs to be quashed and set aside.
Further, the direction which will be said to be in the ends of justice will be to remit the matter before the original authority to decide the issue afresh on merit as also the issue of limitation.
50. Accordingly, the order/judgment passed by the learned Single Judge is hereby quashed and set aside as also the orders passed by the original, appellate and the revisional authority are also quashed and set aside.
51. The matter is remitted before the original authority to decide the issue afresh by providing opportunity to the parties to lead evidence on the issue of limitation as also on merit. Such exercise is to be completed within a period of six months from the date of receipt/production of copy of this order.
52. The Special Officer is directed to take the independent decision based upon the merit of the issue and strictly in accordance with law.
53. Accordingly, the instant appeal stands allowed with the aforesaid observation and direction.
Page 22 of 23 L.P.A. No. 313 of 202054. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Saurabh/-
A.F.R. Page 23 of 23 L.P.A. No. 313 of 2020